December 27, 2013

Half a dozen environmental groups have filed a lawsuit against the city of Cape Coral and a state agency in hope of forcing the replacement of the barrier in the North Spreader Canal.

The Florida Watershed Council, Inc.; Caloosahatchee River Citizens Association, Inc. (Riverwatch); Responsible Growth Management Coalition, Inc.; Calusa Land Trust And Nature Preserve Of Pine Island, Inc.; Sanibel-Captiva Conservation Foundation, Inc. and the Greater Pine Island Civic Association, Inc., along with environmental activist Phil Buchanan, carried through on a previous notification and filed the suit on Dec. 27. According to a prepared statement issued Friday, the suit is intended to enforce a Settlement Agreement and Consent Order the organizations maintain requires the city to replace the Ceitus Barrier with either a boat lift or boat lock.

Also named in the suit is the Department of Environmental Protection.

According to the prepared statement, the Ceitus Barrier historically separated stormwater from flowing directly into Matlacha Pass until it was removed by the city of Cape Coral.

"Without it stormwater now dumps directly into one location - Matlacha Pass Aquatic Preserve, which is an Outstanding Florida Waterbody," according to the statement.

"The lawsuit will enforce the terms of a Consent Order and Settlement Agreement signed in 2008 by Cape Coral and DEP, as well as Lee County and nine non-profit environmental organizations and individual residents," the joint release states. "The Settlement Agreement resolved a previous legal dispute over Cape Coral's refusal to replace the Barrier. The Settlement Agreement required that Cape Coral seek permits to restore or replace the Barrier. DEP was to approve the permits within 30 days so the Barrier would be in place before the rainy season in 2010. However, Cape Coral did not obtain or diligently pursue the permits as agreed, and over two years have passed. DEP has thus far done nothing to enforce the Consent Order or the Settlement Agreement.

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The suit further alleges that "The removal of the Ceitus Barrier changed what was a stormwater spreader system into a stormwater drainage ditch that dumps directly into Matlacha Pass, a designated 'Outstanding Florida Water.' The excess poor quality fresh water and siltation during the rainy season has a disastrous affect on the survival of salt water dependent marine life, including sea grasses, oysters, tunicates, sponges, and (fish) eggs and hatchings.

"Rerouting of stormwater from their historic flows through the wetlands directly into Matlacha Pass also (1) also deprives wetlands and fish nurseries of essential fresh water, and (2) prevents wetlands from filtering the water before it reaches Matlacha Pass."

"The coffee-colored, polluted water now flowing through our estuary is not all coming down the Caloosahatchee - some of it is draining through North Cape Coral and down into what presently constitutes the North Cape Stormwater Drainage Ditch on into Matlacha Pass," Buchanan, a Pine Island resident, said in the release. "This violates the terms of our Settlement Agreement as well as the DEP Consent Order, and it's time we enforce these legally binding agreements - we should not have to insist that our governments obey their own laws. We can no longer tolerate governmental agencies that do nothing when it comes to our environment."

Both the city and the state dispute the environmental groups' interpretation of that settlement agreement, with city officials stating in October that the then-threatend lawsuit to force replacement of the barrier removed from the city waterway was without merit.

Officials with the state agency previously declined comment on the suit but did say reinstallation of a barrier would cause more harm than environmental good and that both the city and state had followed proper procedure in hammering out a plan to protect water quality.

"The city was required to file a permit to replace the barrier and we denied it," John Englehardt, local director of the Florida DEP, said in the earlier interview. "We found most of the water is tidal and just putting a barrier there would not have the impact we thought it would. Where the water comes in, it goes out."

Englehardt also said a barrier would have a negative impact on the smalltooth sawfish, a protected species, and that the city had developed a "net ecosystem benefits package" in lieu of barrier replacement and that plan satisfied the conditions of the consent order.